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Family court robs men and demeans women by splitting property equally when a marriage ends

By Des Houghton, Courier Mail

February 6, 2016

Brisbane barrister says he wants to strip the Family Court of its cloak of secrecy and challenge the unethical rule of thumb that property must be split equally when a marriage ends.

Rob (not his real name) said he discovered bias, procedural unfairness and improper conduct by an interstate judge during his own divorce proceedings.

“I have been through the Family Court wringer for three years and it has enraged me,” he said.

He also believes certain dishonourable solicitors should be charged with professional misconduct for encouraging women to fake domestic violence accusations to win sympathy.

Rob said trouble began when an interstate judge who did not know he was a barrister became antagonistic and set up roadblocks when he began asking questions about his ­access to affidavits crucial to his case.

“It was the first time I was the litigant and it was a chastening experience,” he said.

“There was a complete lack of rigour in almost everything they did.

“Rather than dispensing justice it is all about making things easier for the courts.”

To confuse matters, his case was bounced back and forth to four different judges in different states.

Rob has also sought an order for one judge to “be disqualified from presiding over the trial” on the ground of bias and/or apprehended bias.

His fears mounted when he discovered his wife had ticked a box on a form saying there had been violence in the home, an allegation dismissed by his older children.

“It was so highly prejudicial,” he said. “There was no box I could tick to say I deny it. It’s a difficult thing to prove a negative.”

And he wondered whether a husband’s violence or non-violence was relevant in a property settlement anyway.

A 50-50 split is fundamentally sexist and unfair to men and regards women not as sturdy independents but as helpless snowflakes entitled to disproportionate amounts of cash ­accrued during the marriage.

Rob is a man whose considerable assets were boosted by an inheritance windfall. He was distressed when he felt he was being improperly pressured into a 50-50 property split simply because the court was busy.

“The Family Court, in particular the Full Court, has constantly ignored the rulings of the High Court for nearly 40 years,” he said.

He said the latest High Court ruling came in a case known as Stanford v Stanford in 2012 and supported by earlier cases such as Mallet v Mallet in ruling each matter must be determined upon its unique and particular circumstances.

The High Court ruled there is no presumption of equality as a starting point in respect of contributions to marital property and assets.

Sausage-machine Family Court cases are an affront to these rulings, Rob said.

In Stanford, property settlements were dealt with in a four-step process in which the assets were identified and each party’s contributions assessed and a range of specific factors considered.

“It seems the courts have entirely ignored that part of Stanford,” Rob said. “It does make a difference, and a potentially earth-shattering one at that.”

“Yet the courts continue to decide cases without any change to principles which the courts have used for 40 years,” Rob said.

He added: “It follows that the courts cannot now sit back and pronounce percentage splits of property based on little else but the length of cohabitation.”

Men going into divorce have absolutely no idea they will be torn apart financially and emotionally.

He said a spouse may enjoy the home for a long period without having to make any ­financial contribution whatsoever.

Rob was taught at law school that the rules of natural justice are principles developed at common law and were there to ensure fairness in ­decision making by courts.

He believes a denial of procedural fairness cannot be excused simply because the judge feels he or she must act with diligence and expedition to clear a backlog.

Rob knows he is treading on dangerous ground when he suggests the courts are weighted against men. And he believes men going into divorce had absolutely no idea they would be torn apart, financially and emotionally.

Conversely, in those cases where highly successful women are the major breadwinners, they too suffer discrimination in asset splits.

Rob said he hadn’t appeared in the Family Court in years and hadn’t realised there was entrenched gender bias. Much of his professional life has revolved around other areas of law.

The Family Law Act says decisions have to be “just and equitable”. They aren’t.

He said it took two years to get orders pertaining to child custody by which time they were irrelevant.

“The children grow up and vote with their feet and choose whether they want to live with mum or dad,” he said.

They live with him for 75 per cent of the time to accommodate their mother’s new lifestyle.

He does not want to belittle any wife’s contribution but said she brought no assets to the union and he had to work damned hard to keep her comfortable.

He can understand why many men feel aggrieved.

Rob is right.

All courts were slow to adapt to the rapid ascension of women in the ’70s. Women, and especially mothers, were for a long time subjugated and derided as mere “homemakers”.

In a bid to right the wrongs of the past the Family Court has overcorrected. Women have achieved equality, and in the Family Court it comes with a big fat bonus.

A 50-50 split is fundamentally sexist and unfair to men and regards women not as sturdy independents but as helpless snowflakes entitled to disproportionate amounts of cash and other “prizes” ­accrued during the marriage.

Latest figures from the Bureau of Statistics show there were 46,498 divorces in Australia in 2014.Women, and especially mothers, were for a long time subjugated and derided as mere “homemakers”.

The highest percentage of divorces involved couples aged between 40 and 44.

The median age at marriage for divorcing males from the class of 2014 was 28.9 years and 26.4 years for females.

There were 10,699 divorces in Queensland that year.

Rob is not the first to see the injustice and feel the hurt.

The divorced men (and some women) who feel cheated might not know it, but they have an ally in Britain.

Ruth Deech, an independent peer in the House of Lords, recently criticised divorce courts for “notoriously or gloriously” favouring the non-breadwinner – usually the wife.

Divorce settlements that keep ex-wives in comfort at the expense of their former husbands should be scrapped, she said.

Baroness Deech condemned the doctrine of the divorce courts which says a divorced woman should get a half share of the couple’s wealth.

It is unfair to men and demeaning to women, she said.

She has frequently called for tougher divorce laws generally to protect children from the damage caused by family break-up.

And she believes the idea of fault should be brought back into proceedings. Those who ask for a fast-track divorce on the grounds of adultery or unreasonable behaviour should be made to wait for 12 months before they can remarry or settle their maintenance.

Rob is still waiting for the decision on his assets split.

Meanwhile he intends making complaints to the Chief Justice, the Bar Association, the Federal Ombudsman, and perhaps the Law Council of Australia.

One Response to Family court robs men and demeans women by splitting property equally when a marriage ends

Its a shame that it takes a barrister (who is under separation) to realize the bias against men in the family law court. The current situation is simply an outrage. Distribution of assets should only take into account contributions, as it used to.
In my case my ex wife received the majority of assets with no contribution. I was left with the “value” of my international company which collapsed during the recession. End result; I was left with nothing and my wife retired a millionaire. Brilliant system!